Laws on apostasy offences violate rights, says counsel


  • Nation
  • Friday, 14 Nov 2003

By CHELSEA L.Y. NG

PUTRAJAYA: Laws that govern offences involving apostasy and acts that are inconsistent with Islam are violating the fundamental right to freedom of religion, a counsel submitted at the Federal Court. 

Malik Imtiaz Sarwar, who represented four Kelantanese who wanted to renounce Islam without being subjected to the repentance procedure by the state religious council, said there was no valid basis for any law requiring certification by the Syariah Court as a pre-condition to renunciation. The pre-condition, he said, was a fetter to freedom of religion. 

Malik was submitting for Mat Yaakub Ismail, 56, Kamariah Ali, 51, Daud Mamat, 72, and Mohamad Ya, 57, who died last month, – who had served two-thirds of a three-year jail term in the Pengkalan Chepa prison since November 2000 for contempt of court over their refusal to obey a Syariah Appeals Court order to attend repentance classes.  

The four obtained leave from the Federal Court on Nov 5 last year to appeal against the Court of Appeal’s decision that their detention for repentance classes pending an official confirmation of their renunciation by the Syariah Court was constitutional. 

The Court of Appeal had also dismissed their appeals to be released from prison, which they claimed was unlawful detention, saying that the section of the Islamic law used by the Syariah High Court to convict and sentence them was in tandem with provisions of the Federal Constitution. 

Malik also submitted that the fact that the parties were still arguing about whether the four appellants were Muslims in law when they had all declared their renunciation of the religion five years ago, showed how much of a mockery the system was making of the right to freedom of religion specified in Article 11(1) of the Constitution. 

Malik also argued that the derision with which the word “murtad” (apostate) was used clearly showed that it was perceived in the negative. 

“The laws in effect wrongly codify this sentiment.  

“These laws whether they prescribe the death sentence or mandatory rehabilitation ... hang over the heads of persons who intend to renounce Islam,” Malik said before a five-man panel consisting of Chief Justice Ahmad Fairuz Sheikh Abdul Halim, Federal Court judges Justices Mohd Noor Ahmad, P.S. Gill and Rahmah Hussain and Court of Appeal judge Justice Richard Malanjum. 

Respondents in the appeal were the Pengkalan Chepa prison director, Kelantan Islamic Religious Council and the Kelantan Government.  

On the argument of Attorney-General Tan Sri Abdul Gani Patail that Article 11(3) conferred to every religious group the right to manage its own religious affairs, including the right to rehabilitate those who attempted to leave the religion, Malik said the right to manage must still be subjected to the right to freedom of religion specified in Article 11(1). 

Malik said the purpose of Article 11(3) was to facilitate the management of the religious affairs of a person who was still within a said religion. 

In his submissions earlier, Abdul Gani said the appellants’ contention that the pre-condition was a fetter to their right to renounce Islam “is a backdoor way aimed at destroying the rights” of the religious council to rehabilitate the would-be apostates. 

After hearing submissions since Monday, the judges reserved judgment to a date yet to be fixed.  

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